Citation Nr: 1220949
Decision Date: 06/15/12 Archive Date: 06/22/12
DOCKET NO. 07-34 356 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent from July 1, 2005, and in excess of 20 percent from May 30, 2007, for a low back strain.
2. Entitlement to an initial rating in excess of 0 percent from July 1, 2005, and in excess of 10 percent from September 13, 2006, for status post left salpingo oophorectomy and partial right salpingectomy with pelvic inflammatory disease (a gynecological disorder).
3. Entitlement to an initial compensable rating for seborrheic dermatitis from July 1, 2005.
4. Entitlement to an initial rating in excess of 30 percent from July 1, 2005, and in excess of 50 percent from May 30, 2007, for a major depressive disorder.
(In accordance with BVA Directive 8430 (May 17, 1999), the Veteran's claim for a total rating based on individual unemployability (TDIU) will be concurrently adjudicated in a separate Board of Veterans' Appeal decision under the same docket number.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and her husband
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from October 1983 to June 2005.
This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In December 2009, the Veteran and her husband testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record.
In a March 2009 statement, the Veteran made a claim for an earlier effective date prior to July 1, 2005, for the grant of service connection for her major depressive disorder. However, this free standing earlier effective date claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for adjudication which adjudication must take place before the AOJ readjudicates her claim for higher evaluations for her major depressive disorder.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
As to the claim for higher initial ratings for a low back strain, the Veteran testified, in substance, that her low back strain is worse than rated at least in part because of the pain radiating down her legs. In this regard the Board notes that not only are the Veteran's VA examinations positive for impaired reflexes in her lower extremities (1+/4 at her May 2007 and May 2008 VA examinations and 2+/4 at her October 2009 VA examination), but June 2009 VA treatment records document her treatment for sciatica. Moreover, the Board notes that 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242, Note (1) (2011) articulates that neurologic abnormalities may be evaluated separately under an appropriate diagnostic code. Furthermore, 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2011) provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity.
Despite the above, while the record reveals that the Veteran was provided with a number of orthopedic examinations to ascertain the current severity of her low back strain, it does not show that she was ever provided with a neurological examination. Therefore, the Board finds that a remand is required to provide the Veteran with a neurological examination to ascertain the current severity of any adverse neurological symptomatology associated with her low back strain. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006).
As to the claim for higher initial ratings for a gynecological disorder, the Veteran testified that she received ongoing medical treatment for this disability, including several recent surgeries, from a Dr. Timothy J. Gelety. She also testified that she received treatment from Tricare/Triwest. However, while the Veteran provided VA with at least some of her records from Dr. Gelety and Tricare/Triwest, the record does not reflect that the RO ever directly requested all of her records. Therefore, the Board finds remand is required so that an effort can be made to obtain and associate these records with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); Bryant v. Shinseki, 23 Vet. App. 488 (2010).
The Board further notes that while the record shows that the Veteran was provided with several VA examinations in connection with her claim for higher initial ratings for her gynecological disorder, with the most recent taking place in May 2007 and October 2009, the Board does not find that any of these examinations are adequate. The Board has reached this conclusion because they do not provide sufficient information about her adverse symptomatology to allow the Board to rate it under 38 C.F.R. § 4.116, Diagnostic Code 7614-7619 (2011). Therefore, the Board finds that a remand for a new VA examination as to this claim is also required. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
In this regard, given the Veteran's testimony regarding the scarring around her remaining left ovary, the examiner should also be asked to provide an opinion as to whether this scarring causes such impairment to the ovary that it equates to complete removal of that ovary. 38 C.F.R. § 4.116, Diagnostic Code 7619. In addition, given the Veteran's personal hearing testimony, the examiner should be asked to provide an opinion as to whether her adverse symptomatology equates to "symptoms not controlled by continuous treatment." 38 C.F.R. § 4.116, Diagnostic Code 7615 (2011).
As to the claim for an initial compensable rating for seborrheic dermatitis, the Veteran testified that she took pictures of herself at a time that her disability was active. However, copies of these pictures have never been provided to VA. Therefore, the Board finds that a remand to provide the Veteran with an opportunity to provide VA with these pictures is required. See 38 U.S.C.A. § 5103A(b); Ivey, supra; Bryant, supra.
Moreover, while the Veteran and her husband both testified that the symptoms associated with her service-connected skin disorder were worse during the winter, the record on appeal does not reveal that she was ever afforded a VA examination during a winter month. Therefore, the Board finds that a remand for a new VA examination is also required as to this claim. See 38 U.S.C.A. § 5103A(d); Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (holding that examinations should be conducted during an active stage of any disease that is subject to active and inactive stages, such as skin disorders); Barr, supra.
As to all the issues on appeal, the Board notes that while the Veteran appears to receive ongoing treatment from the Tucson VA Medical Center, her post-October 2009 treatment records from this facility do not appear in the record. Therefore, while the appeal is in remand status, these records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records).
Finally, as to the claim for higher initial ratings for a major depressive disorder, the Board finds that this claim is inextricably intertwined with the Veteran's yet to be adjudicated claim for an earlier effective date for the grant of service connection for her major depressive disorder. Therefore, the Board finds that adjudication of this claim must be held in abeyance until the AOJ adjudicates her earlier effective date claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).
Accordingly, the appeal is REMANDED to the RO/AMC for the following actions:
1. The RO/AMC should obtain and associate with the record all of the Veteran's post-October 2009 treatment records from the Tucson VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file.
2. After obtaining authorizations from the Veteran, the RO/AMC should obtain and associate with the record all of her treatment records from Dr. Gelety and Tricare/Triwest. All actions to obtain the requested records should be documented fully in the claims file.
3. The RO/AMC should contact the Veteran and ask her to provide VA with the pictures she testified that she took of her active seborrheic dermatitis. All actions to obtain the requested pictures should be documented fully in the claims file.
4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with an examination by a neurologist. The claims file should be provided to the examiner in connection with the examination. After a review of the record on appeal, an examination of the claimant, and after conducting all necessary testing including an electromyography (EMG) and nerve conduction study, the examiner should provide a detailed review of the Veteran's history, current complaints, and the nature and extent of any adverse neurological symptomatology due to her service-connected low back strain. In this regard, the examiner should provide answers to, among other things, the following questions:
a. Does the Veteran have any adverse neurological symptomatology in either the right and/or left lower extremity due to her service connected low back strain and, if so, what is the diagnosis?
b. As to any diagnosed adverse neurological symptomatology is it best characterized as mild, moderate, moderate-severe, or severe incomplete paralysis of the sciatic nerve or complete paralysis of the sciatic nerve?
5. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with an examination by a gynecologist. The claims file should be provided to the examiner in connection with the examination. After a review of the record on appeal, an examination of the claimant, and after conducting all necessary testing, the examiner should provide a detailed review of the Veteran's history, current complaints, and the nature and extent of her gynecological disorder. In this regard, the examiner should provide answers to, among other things, the following questions:
a. Does the scarring around the Veteran's remaining left ovary cause such impairment to the ovary that it equates to complete removal of that ovary?
b. Is the Veteran's service-connected gynecological disorder manifested by symptoms that equate to "symptoms not controlled by continuous treatment?"
6. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with an examination by a dermatologist during a winter month. The claims file should be provided to the examiner in connection with the examination. After a review of the record on appeal, an examination of the claimant, and after conducting all necessary testing, the examiner should provide a detailed review of the Veteran's history, current complaints, and the nature and extent of her seborrheic dermatitis. In this regard, the examiner should provide answers to, among other things, the following questions:
a. The examiner should provide an opinion as to whether the Veteran's seborrheic dermatitis is manifested by symptoms that equate to a scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and/or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).
b. The examiner should also provide an opinion as to the percent of the exposed areas affected; the percent of the entire body affected; the frequency and duration of her topical therapy during each 12 month period since 2005, if any; and the frequency and duration of her steroid therapy during each 12 month period since 2005, if any.
7. The RO/AMC should adjudicate the claim for an earlier effective date prior to July 1, 2005, for the grant of service connection for her major depressive disorder.
8. The RO/AMC should thereafter readjudicate the claims. Such adjudication should consider whether further staged ratings are needed. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If any benefit sought on appeal remains denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).